Summary of: Bruce Ziff, Principles of Property Law, 3 rd ed. (Toronto: Carswell, 2000). Recommended for LAW 440

Transcription

1 Summary f: Bruce Ziff, Principles f Prperty Law, 3 rd ed. (Trnt: Carswell, 2000). Recmmended fr LAW 440

2 1 CHAPTER 1: THE NATURE OF PROPERTY CASES: Yanner v. Eatn INS v. Assciated Press NBA v. Mtrla Victria Park Racing and Recreatinal Grunds v. Taylr Mre v. Regents f University f Califrnia Guld Estate v. Stddart Publishing C. prperty = a bundle f legally enfrceable rights ver land r chattels - includes rights in relatin t bjects and intangible ideas, and rights vis-à-vis individuals. Hnre s 11 standard incidents f wnership The mst basic right in the bundle is the right t pssess and cntrl prperty t the fullest extent. (1) THE PROPERTIES OF PROPERTY (A) PUBLIC AND COMMON PROPERTY 4 Kinds f prperty (1) Private Prperty (2) Public Prperty (3) Cmmn Prperty (4) Cmmunal / Cllective Prperty Private prperty and public prperty are ften seen as cntrasting. Fr public prperty, it is the state that pssesses the pwer f exclusin. Hwever, the rights f enjyment fr public hldings are nt entirely the same as thse held by a private wner. In principle, the allcatin f public gds shuld be carried ut based n an assessment f public interests. Public prperty is subject t state cntrl and is burdened with public bligatins. Private wners are nt generally cnstrained in this same way. Mnplus cntrl f prperty is vested in the individual in a private prperty system. In terms f public prperty, this cntrl falls t the state. State s right f exclusin in terms f public prperty is tempered by cnstitutinal rights (ie. the right t prtest n public prperty). Cmmunal/Cllective prperty: What these terms mean is nt always clear. Hwever, cmmunal prperty rights are ften based n belnging t a certain class r being part f a defined grup (ie. abriginal). Private vs. Cllective prperty: Difference between the tw can be hard t establish. Private wnership des nt always mean individual wnership the law allws tw r mre peple t share prperty as jint tenants r tenants in cmmn. Hw des shared private wnership (cncurrent wnership) really differ frm cmmunal prperty? Where cmmunal prperty rights distinguish between thse wh are in and thse wh are ut, cmmunal wnership and shared private wnership start t lk alike. (2) THE CASE FOR PRIVATE PROPERTY

3 2 It is assumed, accrding t Canadian scial values, that prperty wnership prvides the basis fr enhancing the human cnditin. All arguments fr private prperty centre n this belief. There are 7 main categries f arguments fr private prperty: (A) ECONOMIC ARGUMENTS (i) the basic law and ecnmics stand: Fcuses n the prmtin f ecnmic efficiency and abundance as a justificatin fr private prperty. Based n the belief that the wealth that we experience in Canada is a result f the right f private prperty that encurages us t prduce mre and reap the reward. Accrding t the cnventinal ecnmic psitin, the principles gverning prperty will tend tward efficiency and wealth maximizatin if several features are in place: 1) The law shuld prtect exclusivity f wnership 2) The law shuld allw entitlements t be transferable s that they can circulate in the market (this ensures that prperty interests eventually gravitate t thse peple wh value them mst) 3) The law shuld make a brad array f items available fr exchange. Prperty shuld be as universal as pssible and shuld be tenable by as many peple as pssible (the mre players the better) With these factrs in place the market can wrk t shift resurces efficiently with each trader being assumed t be a ratinal wealth maximizer. (ii) The tragedy f the cmmns Parable that assumes that all peple wh share in a given piece f prperty will maximize the use f that prperty in rder t get the mst fr their mney (s t speak). The tragedy arises when veruse f the finite amunt f prperty by all wners seeking t maximize their use leads t degradatin and ecnmic lsses fr all thse invlved. The thery is that the use f private prperty wuld nt lead t the same results because the land wuld be mre carefully preserved. This parable may be mre an argument against unregulated cmmn prperty than an argument fr private prperty. (iii) Other Critiques Arguments based n efficiency and ecnmics lack persuasiveness - they fail t prve that they prduce better results than prduced by ther frms f wnership. Ecnmic theries are heavily reliant n the belief that mst peple are ratinal wealth maximizers at heart (may be an ethncentric way f thinking). Ecnmics and mrality d nt always line up (ie wnership f human rgans may be seen as immral even thugh it accrds with the principles f wealth maximizatin). It is pssible that t much private wnership may impede ecnmic develpment (ie if all rads were privately wned). (B) ARGUMENTS BASED ON UTILITARIANISM (Bentham) Wealth is a measure f happiness peple have an acquisitive need that must be satisfied t achieve happiness, and this can be best accmplished in a sciety that prvides a measure f security fr prperty hldings. Any rule r cnduct is ptentially beneficial even if it leads t the extreme suffering f sme. This thery may be used t argue against private prperty as much as it can be used t argue fr it ie. ne may wish t tlerate the enslavement f a few if sciety was better fr it.

4 3 (C) THE PROMOTION OF FREEDOM Private prperty is suppsed t prmte autnmy and enhance freedm. The expansin f freedm shuld be seen as bth the primary end f develpment and the principal means f achieving develpment. The functin f prperty is t draw a line arund public and private pwer (prtects the wner f prperty frm interference by the state) liberalism. In reality, this line is drawn because the state allws it t be drawn. Prperty wnership can cnfer n sme citizens an enrmus pwer t cntrl thers ie. in business r in family - by bequeathing prperty with cnditins such as marrying a certain persn r within a certain faith. (D) PERSONHOOD, MORAL DEVELOPMENT AND HUMAN NATURE (Hegel) Private prperty is cnnected with human and mral develpment. In ther wrds, prperty allws that human will t develp and thrive, bestwing n peple the capacity t demnstrate individuality and full self-expressin. T achieve prper self-develpment t be a persn an individual needs sme cntrl ver resurces in the external envirnment. Prperty separates mral and plitical scieties frm thers. Assumes that human beings are acquisitive by nature (rather than nurture) On the ther hand, prperty wnership may nt always be an enriching experience (ie it may fster traits f greed, avarice, selfishness etc.) Based n the value f the individual in sciety as ppsed t the grup (private vs. cllective wnership being the desired end). (E) LABOUR, DESERT AND CONSENT (Lcke) Individuals are entitled t thse things ver which they have labured. The law is nt the surce f prperty rights nature is. The primary functin f the legal system and f civil sciety is t prtect the pre-plitical right t prperty. (F) ENTITLEMENTS DERIVED FROM OCCUPANCY First in times is first in right (the act f taking pssessin is treated as the labur that merits the granting f a reward). This rule refers t riginal acquisitin in a state f nature, and t the prfits. Pivtal t abriginal land claims als central t clnialism. (G) PLURALIST ACCOUNT (Munzer) Prperty rights based n (a) utility & efficiency (b) justice & equality and (c) labur & desert (3) THE FUNCTIONS OF MODERN PROPERTY LAW (A) RESOLVING NOVEL CLAIMS Decide what items shuld be prtected as prperty. Reslve claims invlving new types f prperty. 2 factrs that have prmpted develpments in the judicial meaning f prperty: (1) Rejectin f prperty as wnership f things in favur f the idea that prperty is a bundle f rights with many abstractins. (2) Advances in science and technlgy 2 styles f assessing new types f claims: (1) Attributes apprach des the right being asserted lk like ther prperty rights? Can be circular - requires a firm definitin f prperty. (2) Functinal apprach lks at the plicy factrs hw shuld prperty as a scial tl be used? Recgnizes that prperty is acntextual reflects scietal values.

5 4 Example: Is a University Degree prperty? Graham v. Graham A degree has n resemblance t traditinal frms f prperty (n market value, it is persnal t the hlder and cannt be sld, it can be earned but nt bught etc.) Wdwrth v. Wdwrth invlved a wife s claim fr the divisin f her husband s law degree. Curt fund rejected Graham and fund that a university degree is prperty that culd be divided (r cmpensated fr mnetarily) between the spuses. Cultural Apprpriatin the taking frm a culture that is nt ne s wn f intellectual prperty, cultural expressin r artifacts, histry and ways f knwledge Cntrversial in Canada abriginal prperty rights (ie. stries, traditinal mtifs, use f ancient medicines fr pharmaceutical patents etc.) Often beynd the traditinal scpe f prperty law, including intellectual prperty law. Nvel Claims Cncerning Land Curts maintain a cautius view that the categries f prperty rights must be carefully cntrlled slw t refrm. Parliament is nt as cnservative. 5 main functins f prperty law (1) Determines the bjects f wnership. (2) Allcates entitlements and prvides a cntext fr rights t be exchanged. (3) Balances the cnflicting claims f prperty wners. (4) Prvides prtectin, thrugh criminal and civil law, against wrngful actin by persn with n entitlements. (5) Serves as a mechanism t ascertain and facilitate the dispsitinal preferences f wners Functins mstly serve t prmte ecnmic efficiency thrugh by reducing transactin csts. Prperty law balances the rights f exclusive interest and public interest CHAPTER 2: THE INSTITUTION OF PROPERTY IN CONTEXT CASES: Rck Resurces Inc. v. British Clumbia (A) SOURCES OF CANADIAN PROPERTY LAW (1) ENGLISH FEUDAL SYSTEM Gives us 2 main principles f mdern prperty law: tenures and estates. In this system, land is held f a lrd, nt wned utright by the subject. Recipients d nt btain abslute (alldial) wnership f land. Functin f this relatinship was t create an ecnmic & scial netwrk. The Crwn granted land t tenants-in-chief in return fr allegiance, revenue etc. Created a cntractual relatinship reciprcal bligatins between tenant and lrd. Tenant-in-chief wuld eventually be able t pass the land n t smene else mdern sale f residential prperty stems frm here. Subinfuedatin

6 5 Creates a new layer f tenure like a sublease puts the tenant in the rle f being lrd f the grantee. New tenant called tenant in demesne, tenant-in-chief called mesne lrd. Created a cmplex scial & ecnmic pyramid as the system became mre cmplicated. A tenant was cmpelled t prvide tenurial services t the immediate lrd designed t satisfy 4 basic needs: (1) security, (2) spirituality, (3) splendur, (4) sustenance. In additin, there were bligatins and entitlements (called incidents ) that attached t land vary depending n type f hlding. Fr example: Oaths f allegiance given by tenant t lrd (hmage and fealty) The right f the lrd t call fr financial (aids) Transfer taxes (fines) Death duties payable n the descent f land t an heir (relief/primer seisin) By 14 th Century 3 types f freehld estates were recgnized: (1) fee simple (2) fee tail (3) life estate End f Feudal System by early 13 th Century - tday tenures and estates still frm the basis f land law in Canada, hwever mst f the feudal trappings have lng since disappeared. 2 statutry refrms altered the shape f feudalism drastically: (a) Quia Emptres Terrarum 1290 Designated t reduce the cmplicating prblems f subfudeatin by prhibiting further subfudeatin. Did nt ablish existing land tenures Transfer f the fee simple estate frm A t B culd n lnger be accmpanied by bligatins f cntinuing tenurial services r incidents wed by B t A. Allwed transfers f land t take place withut the cnsent f the immediate lrd. Expected that as escheats and frfeitures ccurred the pyramid wuld truncate until the Crwn again assumed the psitin f immediate lrd t all tenants. Plan was successful helped alng by the plague (deaths). Seen as prviding the first legislative manifestatins f the plicy f prmting free alienability an idea that influences much f cntemprary prperty law. Quia emptres is nt binding n the crwn the granting f new lands and the recnveying f prperties reclaimed thrugh escheat has cntinued. After the death f the tenant, the wner f the fee simple is entitled t assume pssessin f the land. (b) Statute f Tenures 1660 Designated t greatly reduce the available frms f tenure. Cnverted tenures by knight service & serjeanty int scage & remved sme f the nerus incidents f tenure. Decreed that all future grants were t be in free and cmmn scage. Opened the dr fr capitalism In Alberta tday the Crwn remains the ultimate and final heir if an estate in fee simple cmes t an end with n persn entitled t assume wnership, that land reverts t the Crwn. All wnerless land reverts t the Crwn. (2) THE ADOPTION OF ENGLISH LAW

7 6 Accmplished thrugh the general laws f receptin (hw clnies were acquired hw they acquired a legal regime) Canada (except Quebec) derives it law frm England s cmmn law. Receptin can be selective Alberta chse what laws t receive frm England based n which nes were applicable t the cnditin in the prvince at the time f receptin. NWT Act sets ut date f receptin fr Alberta July 15, 1870 Huggard Assets (circa 1950) Example f the applicatin f receptin principles t prperty law Gvernment wanted t levy ryalties against the defendant. Questin was whether the laws gverning tenure by free and cmmn scage were in frce in Alberta. Curt held that it was received by Alberta, but nt by virtue f the Statute f Tenures. Hudsn s Bay Charter, 1670 transactin between the gvernment and the Hudsn s Bay cmpany example f free and cmmn scage in Canada. Sectin 3 f the NWT Act says that Alberta received the law f England (which included free and cmmn scage) which can be changed thrugh subsequent legislatin. The ryalties that the gv t was asking fr were cvered by legislatin and therefre valid. (2) OTHER HISTORICAL FEATURES English Law cmes frm Nrdic, Germanic, Rman influences etc. Other surces f pst-receptin refrms: (a) Australia - Trrens system f land registratin and the basic elements f cndminium (strata) title. (b) US hmestead laws (c) Eurpe Matrimnial prperty laws The Dctrine f Marital Unity Husband and wife are t be treated as a single legal entity. Wman lst her legal identity affected her rights f wnership. Gender-based rule mstly dead nw husband and wife are nw cnsidered separate legal entities. English Law and Abriginal Title Receptin f English laws verlays the pre-existing prperty rights f Abriginal cmmunities. Abriginal peple retain prperty rights unless they are taken away by a legitimate act f the state Canadian law recgnizes pre-clnial land rights. Basic Principles f Canadian Prperty Law in regards t Abriginal title: (a) Surces - Rights riginally seen as usufructuary (nn-pssessry). Nw title is seen as a right t exclusive pssessin Abriginal title is nt exactly a fee simple estate but a class f its wn n particular rule f prperty law applies t land held under Abriginal. Features f abriginal title laid ut by SCC: i. It is inalienable except t the crwn cannt be sld, transferred r surrendered t any ther party ii. It is held cmmunally by the members f an abriginal natin.

8 7 iii. Differs in surce frm ther kinds f prperty hldings 1763 Ryal Prclamatin affirmed the existence f a pre-clnial right (generic cmmn law estates in land arise frm grants made after svereignty had been established). Use f land nt restricted t traditinal practices (ie. may explit mineral rights) but must be cnsistent with the nature f the grup s attachment t the land see Delgamuukw v. British Clumbia p.65. (b) Recgnitin f title - SCC (Delgamuukw v. BC) laid ut the rules fr establishing Abriginal title (legal recgnitin f prperty interests): i. Must be shwn that land was ccupied prir t the assertin f British svereignty prf f an unbrken chain f ccupatin is nt necessary ften present ccupatin will suffice if a link can be drawn between present and pre-svereignty ccupatin that is, a cnnectin with the land has been substantially maintained. ii. Occupatin relied upn must have been exclusive supprted n 2 grunds: (1) prf it title shuld be cnsistent with the prperty interests acquired, and (2) the requirement f exclusivity prevents the chance f cnflicting and adverse claims being recgnized in favur f different Abriginal cmmunities. (c) Lss r alteratin - 2 ways in which Abriginal land rights may be lst: (1) Thrugh surrender such as where lands are ceded t the Crwn under a treaty. (2) Can result frm a valid, yet unilateral, svereign act (exprpriatin by the state) The nus f prf lies n the party asserting extinguishment and requires that parliament shw its intentins are clear and plain. Exprpriatin f land is nt always incnsistent with Abriginal use f the land. Hw the state can affect Abriginal rights is bracketed in 2 ways: (a) The crwn wes fiduciary bligatins t Abriginal peples - stems frm the Crwn s histrical bligatin t prtect the interests f First Natins Peple the crwn must act in gd faith in all dealings and negtiatins. (b) Cnstitutinal cnstraints a. s.91(24) f the Cnstitutin Act, 1867 gives the federal gvernment legislative cmpetence ver Indians, and lands reserved fr them (prvincial laws directed at extinguishing native title are ultra vires and therefre vid). b. S. 35 f the Cnstitutin Act, existing Abriginal and treaty rights f the Abriginal peples f Canada are hereby recgnized and affirmed designed t prtect Abriginal title against regulatin by the federal gvernment c. Charter f Rights and Freedms. (3) BASIC DIVISIONS IN THE LAW OF PROPERTY (A) Real and Persnal Prperty Real prperty (realty) mainly rights in relatin t land Persnal prperty (persnalty) things ther than land

9 8 The line between real prperty (immvables) and persnal prperty (mvables) is grey especially in regards t cntractual prmises, stcks, bnds, human capital, patents, cpyright etc. infrmatin age. Right in rem right against the wrld at large (prperty rights) Right in persnam a right against an individual (persnal rights) SEE DIAGRAM FOR TAXONOMY (4) THE SOCIAL CONTEXT: WEALTH, CLASS AND POVERTY Prperty serves as a badge f status the manner in which prperty is distributed can be used t describe scieties as a whle. Relative psitin f abriginals, black peple is nt gd in Canada significant disparities in wealth gap is grwing. Gender disparities are becming less prnunced hwever wmen still earn less than men. PROTECTION OF PROPERTY (A) Internatinal Cntext Universal Declaratin n Human Rights talks in terms f a right t nt be deprived f prperty withut cmpensatin, but this dcument is nt ratified by Canada > substantive prtectin Cvenant n Civil and Human Rights gives nly a prcedural prtectin t prperty have a right nt t be deprived f prperty withut due prcess > ratified by Canada NAFTA prvides nn-resident investrs f participating cuntries substantive (cmpensatin) and prcedural (due prcess) prtectin f prperty The biggest prblem in internatinal law is remedies prtectin f persnal prperty is an internatinal nrm, but enfrcement f this nrm is weak (B) Dmestic Cntext s. 92(13) gives prvinces exclusive jurisdictin ver prperty and civil rights. But, Parliament als has pwers that impact prperty (such as bankruptcy, criminal law, marriage and divrce, abriginal rights), and Municipalities can make bylaws that impact prperty many gvernments impact land wnership! In Canada we have bth Federal and Prvincial Bills f Rights extrardinary legislatin in that they are superir t any cnflicting statute (1) Federal Bill f Rights 1960 prvides fr enjyment f prperty f individuals and rights nt t be deprived withut due prcess f law a. allwed parliament t avid Bill f Rights by a statute n aviding the Bill f Rights b. nt substantive prtectin, nly prcedural c. all it basically says is if gvt takes prperty away it must d s with due prcess; n mentin f cmpensatin (2) Alberta Bill f Rights basically the same thing prcedural prtectin Hwever, the Alberta Persnal Prperty Bill f Rights (likely nly prvince that has this) defines persnal prperty t be tangible, capable f being physically tuched, seen, r mved. Intangible excluded as is any interest in land > Prvides bth prcedural and substantive prtectin!

10 9 (3) Charter f Rights cntains n explicit prtectin f prperty, mainly due t prvincial cncerns ver the maintenance f scial welfare prgrams, but there is sme implicit prtectin f prperty rights cntained in the Charter: (a) s. 8: right t be secure frm unreasnable search and seizure (b) s. 7: right t life, liberty, and security f the persn as well as the right t nt be deprived f these things except in the interest f fundamental justice (* n p.60 CB, Bauman writes that the SCC rejects the ntin that s.7 includes ecnmic rights, but says that s.7 wuld be a gd place t insert cnstitutinal prtectin f prperty if such an amendment were made) (c) s. 15: equality guarantee can be used t prtect prperty interests when attacked in a discriminatry way A nte n statutes: sme prvide fr cmpensatin fr gvernment interference with prperty rights, but n statute says gvernments must cmpensate. Rather, it is the cmmn law that shws gvernments must cmpensate fr the exprpriatin f prperty interests unless they have statutry authrizatin (Rck Resurces) Exprpriatin Acts (federal + in each prv): prvide cmpensatin fr the taking f rights and interests in land prblem: nthing says this is paramunt legislatin. cmmn law prvides prtectin frm legislative interference in tw ways: (1) legislatin is always interpreted when pssible s that it des nt impair prperty rights, and (2) legislatin must explicitly state CHAPTER 3: THE PHYSICAL DIMENSIONS OF OWNERSHIP CASES: Andersn v. Amc Canada Oil and Gas Didw v. Alberta Pwer Edwards v. Sims (Onyx Cave Case) Nastajus v. Edmntn Beach Lasalle Recreatin v. Canadian Camdex Investments Diamnd Nen v. TD Realty Indian Oil v. Greenstne Shipping McKewn v. Cavalier Yachts Gidney v. Shank. (1) CUJUS SOLUM EJUS EST USQUE AD COELUM ET AD INFERNOS Whever wns the sil, hlds the title up t the heavens and dwn t the depths f the earth The curts d nt apply this maxim literally nly a useful pint f departure. (A) AIRSPACE Ownership f land usually includes rights t the airspace abve it this must be s r land wuld mstly be useless (culdn t build n it). Balance between the needs f landwners and the needs f the public (t whm the air is cmmn prperty) Hw high d wnership rights extend? (a) Sme curts use a standard based n rdinary use (b) Others define the limits n the bases that an intrusin must nt interfere with actual r ptential use and enjyment. Airspace rights are generally treated as pssessry rather than usufructuary therefre amenable t prtectin thrugh an actin f trespass.

11 10 Anchr Brewhuse v. Berkeley Huse Plaintiff btained an interim injunctin t prevent the versailing f the defendant s cnstructin cranes. Plaintiff had n present use fr the airspace being invaded but there were plans fr lng-term develpment Curt held that an intrusin by a structure lcated n the defendant s land cnstituted a trespass t the plaintiff s airspace Different Apprach (suggested by Mrgan) The law shuld prvide that an entry int airspace that des nt interfere with actual r ptential uses f the landwner and des nt explit that persn s interests is nt wrngful. An unauthrized entry that results in the apprpriatin f a benefit frm the plaintiff shuld be actinable. This wuld allw the landwner t recver fr an invasin f airspace if, fr example, the defendants were using remte sensing t explre mineral depsits n the plaintiff s land. Standard is based n the bjectives f the invasin rather than height. (B) BELOW THE SURFACE Little case law cnflicting authrities (C) ECONOMIC PERSPECTIVE Case therem demnstrates that the ecnmic functin f law is, in general terms, t influence the prices that are paid fr varius cmmdities. This may suggest that legal rules f wnership are irrelevant. Deals can be made that are in the best ecnmic interests f bth parties. 3 reasns why prperty rules are critical: (1) We need t knw at the utset t whm a prperty right has been given s that the bargaining prcess can begin. (2) In the prmtin f deal-making the law shuld strive t facilitate the bargaining prcess this it can d by reducing transactin csts. (3) When the market desn t functin as it shuld the law must try t determine which initial wnership rule is ptimal the law acts as a market mimicker shuld establish rules f wnership that reflect the likely utcme f market transactins if the market were able t wrk efficiently. (D) MINES AND MINERALS Ownership f the surface may nt include the right t mines and minerals fund belw depends n the nature f the initial grant f the land in questin. Under current law, a Crwn grant is taken t reserve mines and minerals impliedly. Mineral estate may be severed frm the surface (surface vs. subsurface rights) Where there are separate subsurface rights - in Alberta, the general rule is that a right f entry t the surface area (which may be needed t extract the minerals) must be expressly granted. Imprtant legislatin: (1) Mines and Minerals Act (2) Law f Prperty Act (3) Surface Rights Act

12 11 What is a mine / mineral? A mine is just a space frm which yu take minerals Nt based n scientific definitin (nt accrding t gelgists) but what the industry decides it is usually refers t sme natural substance f value but definitin is very slippery. List set ut in Mines and Minerals Act, Law f Prperty Act s.56(1). What abut sand and gravel n the surface? See Law f Prperty Act s. 58 Diamnds included as mineral under Mines and Minerals Act (precius stnes). Andresn v. Amc Canada Oil and Gas What is included in a petrleum claim? Curt says that it depends n what the cntract says, timing f the cntract. Evlved gas is nt subject t the law f capture. That is, it des nt becme yur prperty when yu capture it (a la Piersn v. Pst). This is different frm petrleum, which is subject t the law f capture wnership vested in thse wh capture it (cmmn law rule that is nw regulated) ryalties are paid t the Crwn. Surface Rights Act Fr parties with cntracts t extract mines and minerals frm land - there is n lnger an autmatic right f entry t land and right t wrk land. s.12(1) cnsent t right f entry is needed frm bth the wner and ccupier f the land. Includes a lse definitin f ccupier. In additin, there must be specific and separate cnsideratin in the cntract fr that right f entry (separate and distinct frm cntract t extract mines and minerals). Surface wners / ccupiers are in the psitin t determine the amunt f cmpensatin fr interference with use and enjyment f the land. Surface rights bard where n agreement can be made as t the apprpriate amunt f cmpensatin t surface wners, the bard will decide and impse a cntract. (2) LATERAL BOUNDARIES (A) LAND BOUNDED BY LAND Lateral bundaries f a surface plt are usually easy t define relatively clear and stable, d nt change much ver time. Difficulty is ften in describing the fixed bundary. Alberta system f twnship surveys prvince is divided by 3 vertical meridians within each meridian there are a number f vertical ranges. Twnship lines run perpendicular t ranges and create bx-like twnships further divisins int sectins (36 fr each twnship) and quarter sectins. Descriptins in the cities (ie Edmntn) can be different. When there is a discrepancy in descriptin the fllwing elements are lked at (in descending rder f imprtance): (a) natural mnuments (b) lines actually run and crners actually marked at the time f the grant (c) abutting established bundaries if referred t in the grant (d) curses and distances Adverse pssessin If a persn ccupies land fr a requisite perid f time he may be entitled t the land (in Alberta 10 years).

13 12 When ne party mistakenly builds n land that belngs t a neighbur, title t the imprved land may be affected ie. the builder may be entitled t a lein n the land t the extent f its increased value r the builder may be entitled t retain the land. (B) LAND BOUNDED BY WATER Cmmn law distinguished water based n whether r nt it is navigable and/r tidal. Nn-tidal and nn-navigable rivers the bundary extends t the middle f that river unless dcuments f title state therwise. The Crwn wns all riverbeds. Tidal and navigable bdies f water - wnership extends nly t the high water mark belw that line the Crwn hlds title. Tidal but nn-navigable / nn-tidal but navigable rivers cmmn law seems t turn n the navigability f the river as a fcus if it is navigable it may be used as a means f transprtatin and therefre can nt be privately wned. (C) RIPARIAN (WATER) RIGHTS Riparian wner prperty butts up against a bdy f water. The Crwn nw wns all water and the right t diversin Water Act s.3(2). The Water Act includes definitin f water all water n r under the surface f the grund, whether in liquid r slid state. At Cmmn Law: Land wnership includes a type f entitlements called riparian rights These include (a) the right f access t the water and (b) the right t take emergency measures t prevent flding. A riparian wner culd use an unlimited amunt f water fr rdinary uses generally dmestic needs. Water culd als be used fr ther nn-rdinary uses such as irrigatin but usage is limited t preserve the riparian rights f peple dwnstream. At cmmn law, dwnstream wners are entitled t receive the natural flw f the stream peple upstream must nt diminish the quality r the quantity f the watercurse. This creates a simple frm f lcal envirnmental cntrl. Rights have nw been legislated A riparian wner r ccupier has rights t divert water fr husehld purpses see s.21(1) f the Water Act (ie. human cnsumptin, sanitatin, fire preventin, watering animals, lawns, gardens and trees). This use des nt require a permit. Limit n cnsumptin is 1250 Cubic meters per year per husehld frm definitin sectin f the Act definitin f husehld cnsumptin. Other extrardinary uses nw require special permissin (ie. irrigatin, manufacturing) cmplicated legislatin, cmplex administrative regulatry infrastructure. Can be sued if yu interfere with a dwnstream wner s riparian rights. Cmmn law can still result in a law suit but legislatin verrides cmmn law. (E) THE LAW OF ACCRETION An element f cmmn law riparian rights that regulates the prcess f transfrmatin f land and watercurses Ersin, encrachment f the water s edge can diminish the size f a freehld. Recessin f water, depsit f sils due t upstream changes can increase its size can be beneficial t the riparian rights f the wner if certain cnditins are met: (1) The prcess f transfrmatin must be slw and imperceptible this may be because the law des nt cncern itself with trifling matters (de minimus thery) ensures that the change is relatively permanent ver the lng term.

14 13 (2) The granting dcuments d nt expressly r impliedly exclude accretin. (3) IMPLICATIONS OF OWNERSHIP: EXTERNALITIES Owning prperty des nt give the wner abslute rights t d what they want within the bundaries f the land rights are nt abslute. Fr example, a persn may nt be able t exclude the plice frm their land. Ownership als has external implicatins vting rights, bligatin t pay prperty taxes, rights relating t schl attendance. That is, rights exist utside f the bundary line f a prperty. Right f Supprt f Land Right f supprt gives the wner a right t have their land in its natural state and at its nrmal level. Exists because changes t surrunding prperties can affect a persn s wn prperty. Fr example, excavatin n prperty A leads t subsidence n prperty B. The wner f prperty B has a cause f actin against the wner f prperty A regardless f whether r nt the wrk was undertaken with care. Als applies vertically ie. subsidence caused by mining beneath prperty A may als be actinable. Rights t supprt may be waived by express language r necessary implicatin. Rights t supprt d nt extend directly t buildings n the land they may cause subsidence themselves. Hwever, if it can be shwn that sinking wuld have ccurred even withut the buildings, there may still be a cause f actin. (4) ON THE CUSP OF LAND AND CHATTLES: FIXTURES AND CONVERSION (A) THE TEST FOR FIXTURES A chattel that becmes sufficiently attached t land may be transfrmed int a fixture, thereby frming part f the realty. This is imprtant because the gift, sale, mrtgage r lease f a prperty includes all fixtures (unless the cntract f sale expressly states therwise). Als, fllwing the terminatin f a lease the landlrd may becme entitled t fixtures placed n the land by a tenant. 2 Objective tests fr whether a chattel has becme a fixture includes: (a) Intentin ascertained by determining the degree and bject (aka purpse) f the annexatin. Was the purpse f the attachment t (a) enhance the land (here it wuld be a fixture) r (b) t better the use f the chattel as a chattel (example heavy machinery that must be attached t land in rder t use it as a chattel). Prblems may arise when the attachment was fr bth purpses. (b) Attachment t land - If a chattel is resting n its wn weight n the prperty it usually remains a chattel. If the chattel is attached t the land, it usually becmes a fixture. But, there is a categry fr unattached fixtures includes huse keys, tls assciated with fixtures, dwellings resting n the grund, rnaments that are integral t the architectural design f the prperty. What is attached hwever, is hard t determine cnclusively. Fr example, is a mbile hme a fixture r a chattel? Everything depends n the specific facts f the case. Curts will als cnsider the amunt f damage that remving the item wuld cause. Whether r nt a chattel becmes a fixture can nt be exclusively cntrlled by cntract ie. an agreement that stipulates that a chattel shall nt by attachment r therwise be deemed a fixture will nt reslve the issue f characterizatins.

15 14 Onus f prf where a cntract is silent abut a particular bject that appears t be a fixture lies with the seller t prve that the item is a chattel and nt a fixture. Hw d yu d that? by shwing that it was the intentin f the affixer that the item remain a chattel. Test is bjective must lk at the degree and purpse f affixatin (as abve). Cntracts can affect the rights f the parties invlved fr example identifying in a cntract f sale what fixtures r chattels are t pass n in the purchase can minimize the cntrversy as t what exactly frms part f the deal. (B) TENANT S FIXTURES Special rules regulate fixtures attached by leasehlders fixtures added by tenants may becme part f the leasehld prperty. A tenant may reclaim fixtures (return them t chattels) if fur cnditins are met: (1) Items must fall within a set f features prtected by cmmn law includes items attached fr the purpse f (a) trade, (b) rnamentatin, and (c) dmestic cnvenience. The cmmn law des nt see agricultural fixtures as being fr trade except if they are fr market gardening (hwever this has been changed by legislatin). (2) Remval may be precluded if it will cause very serius damage t the prperty. (3) This implied right f detachment may be abridged by cntract. Such a waiver shuld be strictly cnstrued against the landlrd. (4) There must be timely remval. Nrmally this means that the tenant must have a right f remval within a reasnable time after the tenancy is actually ended. (C) THE CLASH OF SECURITY INTERESTS The transitin frm chattel t fixture can als affect third parties (ie creditrs). Fr example, a chattel may be sld n terms subject t repssessin if the payments are nt made. If that chattel has becme attached t land with a mrtgage, pririty rules are needed t determine which f the creditrs prevails. Generally, when a chattel becmes affixed t land it falls under the land security r mrtgage this means that the wner f the chattel lses the right t repssessin and is left nly with an actin n the debt against the purchaser. This may be changed by cntract. Current trend in Canada is t regulate these disputed by statute. Imprtant Legislatin - Persnal Prperty Security Act (D) THE EQUITABLE DOCTRINE OF CONVERSION When there is a legal bligatin t cnvert realty (fixtures / land) int persnalty (chattels), a curt f equity will regard this as having been accmplished frm the very mment that the bligatin cmes int frce. Fr example, when a curt rder is made fr the sale f land (realty), the prperty is immediately treated as persnalty in the hands f the persn entitled t the prceeds. Als, where prperty is directed t be sld r given t a persn by way f a will, the same principle applies. (5) THE TRANSFORMATION OF CHATTEL OWNERSHIP Title t chattels may be affected by: (1) The intermixture f the chattels f tw r mre peple. (2) The accessin (r jining) f gds. (3) An alteratin under which an entirely new bject is created.

16 15 (A) CONFUSION (AKA COMMINGLING / INTERMIXTURE) Frm Rman law - Cnfusin ccurs when fungible items are inseparably cmbined (Fr example, liquid (wned by A) mixed with dry gds (wned by B) prduce a new prduct that can nt be separated). The law must smehw decide the prprietary elements f each f the claimants. It is always preferable wherever pssible t separate the gds and return each wner t their riginal psitin. Hwever, this is nt always lgistically pssible. General rule when cnfusin happens as a result f intentinal wrngding r negligence, the persn at fault wuld suffer the lss and the title wuld pass t the inncent party. When cnfusin happens accidentally r inncently r cnsensually, the parties share the cmbined mass as c-wners and their prtins are based n their relative cntributins (if knwn therwise they split if 50/50) General rule des nt usually apply where it wuld lead t substantive injustice (must always cnsider fairness). Cmmingling vs. Intermixture See ntes written n midterm CAN McDnald v. Lane The questin was wh wned sme lgs that had been intentinally cmmingled by the defendant. SCC fund that the plaintiff had title t nly thse lgs that were riginally his. Departure frm the general rule. Emphasizes that the pint f civil law is t cmpensate nt t punish. Indian Oil v. Greenstne Shipping Case f cnfusin. The D cmbined its wn il with il f equal grade belnging t the P. The P s claim fr the entire amunt failed. The curt put D t the strict prf f entitlement had t prve that it was entitled t a certain prtin f the il. Purpse f the law f cnfusin is nt t punish wrngders but t restre the parties t their riginal psitin. Hwever, when this is nt pssible the curts will err n the side f the plaintiff. (B) ACCESSION A legal dctrine designed primarily t reslve disputes in which tw r mre chattels becme attached. Fr example, A s paint is applied t B s car ne f the chattels is subsumed by the ther. Distinguishes between the dminant r principal chattel t which the accessin is made (ie the car) and the secndary chattel usually the dminant chattel is the item with the greatest market value. The persn with title t the dminant chattel usually assumes wnership f the secndary chattel. McKewn v. Cavalier Yachts Pty. The P wned the hull f a sail bat t which the D had added substantial imprvements. The D claims that he was unaware that title was vested in the P. The hull was valued at apprx. $1,700 and the imprvements at just ver $24,000 this wuld lead ne t think that title wuld flw t the D whse chattel is mst valuable.

17 16 The curt fund that the hull was the riginal chattel and that the additins, which were added ver time, increased the value f the riginal chattel. Althugh the ttal wrk was wrth mre than the hull, n single imprvement ut-valued the riginal chattel. 4 suggested tests t determine when multiple chattels have really becme fused : (1) The injurius remval test can the items be remved withut serius physical injury t the principal chattel? (2) The separate existence test has the separate identity f the acceded chattel been lst (as when a plank is added t a ship)? (3) The decnstructin f utility test wuld remval f the cmbined items destry the utility f the principal chattel (such as by the taking f tires frm a truck)? (4) The fixtures test lking at the degree and purpse f annexatin, has an accessin ccurred? Which test is used ften depends n the nature f the dispute. Persnal Prperty Security Act, R.S.A c. P-4.05 Even a minimal attachment falls within the statutry definitin f an accessin. Matters f accessin t be dealt with by statute rather than in cmmn law. (C) ALTERATION (AKA SPECIFICATIO) Alteratin ccurs where A transfrms a chattel wned by B int sme new item. Title is affected by alteratin nly where the gds are substantially transfrmed what is substantial is nt clear in cmmn law. Cnsiders the amunt f labur invlved in the transfrmatin. Substantial injustice test where an inncent taking results in a persn s chattel being cnverted, the curts will say that the taker will be able t keep the item but must cmpensate the party frm which he tk the item. Statue example suppse A trespasses n B s land and cuts dwn a tree. A then carves the tree and makes a statue. Wh is entitled t wnership f the statue? The answer may depend n whether r nt A knew that he was trespassing (was his taking inncent?). Jnes v. De Marchant A successful claim was made t a fur cat that cntained 18 pelts wrngfully taken frm the plaintiff that were later cmbined with 4 thers t make the cat. Includes elements f cnfusin (the P s pelts were mixed with thers), accessin (the pelts had been inseparably merged) and alteratin (the wrk perfrmed t prduce the cat was significant, and the pelts were changed int smething new. CHAPTER 4: THE CONCEPT OF POSSESSION CASES: Ppv v. Hayashi Piersn v. Pst Keefer v. Arilltta Ties v. Ancaster (Twn) Trachuk v. Olinek Parker v. British Airways Bard

18 17 Charrier v. Bell Physical vs. Legal Pssessin: (a) Physical pssessin the wrd pssessin may mean effective, physical r manual cntrl, r ccupatin, evidenced by sme utward act, smetimes called de fact pssessin (r ccupatin). This is a questin f fact rather than law. (b) Legal pssessin that pssessin which is recgnized and prtected by as such by law. Legal pssessin requires (1) Animus pssidendi (the intentin t pssess) and (2) Factum (physical cntrl). The Interpretatin f these 2 cmpnents can vary substantially. De Fact Pssessin Legal pssessin is ften assciated with de fact pssessin, but legal pssessin may exist withut de fact pssessin, and de fact pssessin is nt always regarded as pssessin in law. A persn wh, althugh having n de fact pssessin, is deemed t have pssessin in law is smetimes said t have cnstructive pssessin. Occupatin Occupier an ccupant ne wh is in the enjyment f a thing. Occupy t take r enter upn pssessin f; t hld pssessin f; t hld r keep fr use; t pssess; t tenant; t d business in; t take r hld pssessin. Actual use, pssessin and cultivatin. (Black s Law Dictinary) Barn s Canadian Law Dictinary distinguishes between a persn with actual pssessin (such a tenant, r lessee), and a landlrd r lessr, wh retains legal wnership. Cnstructive Pssessin A type f legal fictin created when either the physical r mental aspect f pssessin (animus and factum) is watered dwn. Cnstructive ntice ccurs when yu shuld n abut smething, even thugh yu dn t. Eg., yu buy a prperty thinking yu will have full prperty rights, but yur neighbur has a right f passage thrugh the back f yur prperty t get at the laneway. Custdy Often cntrasted with pssessin. A persn may have custdy nly withut having any pssessry rights (ie. the case f a car lease driver has custdy but nt legal pssessin) Nem dat qud nn habet yu can nt give what yu dn t have. (1) ACQUISITION OF TITLE BY POSSESSION (Adverse Pssessin / Squatters Rights) First ccupancy can serve as a basis fr allcating prperty rights amng rival claimants. Squatters rights (aka the law f adverse pssessin) the title hlder f land may be barred by statute frm suing a persn/persns wh have been in adverse pssessin f that land fr a specified perid 10 years in Alberta after this time the title f the paper hlder is extinguished and the adverse pssessr assumes the best claim t the land. Favurs eradicating claims based n first pssessin in favur f recent pssessrs. GUEST LECTURE Alberta is unique when it cmes t adverse pssessin trrens land titles registratin system state-run land registry that registers all interests in land. Adverse pssessin claims are very rarely registered. When land is sld t a bna fide purchaser, that purchaser gets indefeasible title stps the clck running n the adverse pssessr s claim.

19 18 Mst adverse pssessin claims in Alberta dn t get very far in the curts because f this system. Mst cases arise ut f situatins f ignrance / mistake. 4 THINGS TO LOOK AT: (a) General Requirements Test frm Keefer v. Ariltta adverse pssessr must be in actual pssessin f the land and their ccupatin must be exclusive, cntinuus, pen, visible and ntrius. Intermittent pssessin (ie. seasnal use f a hunting cabin) is nt sufficient. Requires animus pssidendi intentin t pssess. Must be adverse t the intended use f the true wner (nt stated as an express requirement) Alberta case law is incnsistent n this pint. (b) Nature f Land Different types f land supprt different types f pssessin what is required t shw pssessin. In Alberta cattle grazing is sufficient t establish adverse pssessin f sme land (despite perids f absence cattle des nt graze all year rund) cnsistent with the type f land. Recreatinal use f prperty is generally nt sufficient t establish adverse pssessin. Sme land by its nature cannt be adverse pssessed Public Lands Act prtects crwn land, Municipal Gvernment Act prtects municipally-wned land, irrigatin district land als prtected by new legislatin. (c) Owner s Intentin Lw threshld fr wner in terms f what is needed t exert cntrl / pssessin f land adverse pssessr has a much higher threshld in rder t say that the true wner has lst pssessin. What is the relatinship between the wner and the adverse pssessr? if they are actually jint tenants there can be n adverse pssessin claim happens ften in cases f divrce where ne spuse mves ut f the huse but n agreement is made the ne living in the huse can nt adversely pssess the ther. Als, tenants, licensees etc. usually can nt shw that their use f the land is incnsistent with the wner s intended use they have been granted permissin t be there. Where the wner has n clear intentin with respect t the use f the land / has n relatinship with the adverse pssessr / has never been t the land nn-use may als be intentinal. It is imprtant t cnsider the beneficial nature f nn-use (cntrary t histrical way f thinking that fr efficiency reasns land shuld be used). Curts have dealt harshly with adverse pssessrs wh have intentinally trespassed n anther persn s land but curts are inclined t accept an adverse pssessr s claim where the pssessr enters nt the land in gd faith / hnest mistake. (d) Circumstances f Entry Running time perid f adverse pssessin can be stpped by the true wner in a number f ways fr example, the true wner may cme back and re-pssess the land, adverse pssessr may abandn the land, adverse pssessr may acknwledge the true wner s title. Traps f adverse pssessrs fr example, ffering t buy the land acknwledging that the wner has a superir claim stps the clck. Prblems with the current Law in Alberta Prir t 1999 the limitatin statute was the Limitatin f Actins Act limitatin perid (10 years) started t run when the adverse pssessr had dispssessed the registered wner.

20 19 New Limitatins Act s. 3(3) prvides that a claim is based n a cntinuing curse f cnduct adverse pssessin is a cntinuing trespass therefre yu dn t have t sue until they actually leave. Essentially the limitatin perid des nt run until the adverse pssessr leaves the land unintended cnsequence f the new Act. Under this prvisin new claims fr adverse pssessin are essentially eliminated hwever claims prir t 1999 are still litigated under the ld Act. Law f Prperty Act (Alternative t prblem with Limitatins Act) s. 69 used t prtect reasnable mistaken beliefs in wnership where adverse pssessrs have made lasting imprvements t the land when a persn has at any time made lasting imprvements n land under the belief that the land was that persn s wn are entitled t a lien n the land (frced sale situatin). Lasting means that it must be permanent in the sense that it can nt be easily remved. Imprvement is bjectively determined by a judge. In Alberta, new buildings are lasting imprvements but renvatins are nt. Rads are lasting imprvements but sidewalks are nt, nr are fences, retaining walls etc. (A) THE FUNCTIONS OF ADVERSE POSSESSION Time limits placed n the right t cmmence legal prceedings adverse pssessin arises when n actin has been cmmenced against a trespasser fr the statutry time perid. Designed t eliminate delays in claims that can interfere with a defence (ie witnesses may die, evidence may n lnger be available etc.) Als prtects peple wh live n a piece f land fr lng perids f time thinking that they hld title (they may have made significant imprvements perhaps the title was fraudulent etc.) Trrens (land title) registratin sme jurisdictins have ablished adverse pssessin in favur f Trrens registratin the register tells wh wns what. (B) BASIC DOCTRINAL ELEMENTS A persn exerting squatter s rights must have an intentin t pssess (animus) and demnstrate physical cntrl (factum). Adverse Pssessin must be pen and ntrius, adverse, exclusive (wner must be dispssessed), peaceful (nt by frce), actual and cntinuus in rder fr adverse prperty rights t be asserted. The nature f the acts required will depend n the type f prperty (ie level f cntrl needed will vary between scrub land, farmland, residential lt etc.) (C) CHATTELS The right t sue fr the recvery f persnal prperty may als be barred by the passage f time. Alberta 2 year time limit t bring actin nce the cause f an actin is discvered. Sunset clause even absent discverability, the actin must be launched within 10 years f the wrngding. (2) THE RELATIVE NATURE OF FINDERS (A) GENERALLY Unlike land, there is n frmal registry fr persnal prperty. The finder f a chattel acquires a title that is gd against the entire wrld except fr the true wner r thse with a cntinuing antecedent claim.

21 20 Abandned chattel if it can be demnstrated that the previus wner intended t relinquish title, the riginal wner has n rights. In additin t the true wner, previus finders may als have sme prperty rights t a fund chattel (cntinuing antecedent claim). Finder assumes the respnsibility f taking reasnable steps t facilitate the return f the fund chattel t its rightful wner. Rule is imprtant nt having it wuld mean that n civil r criminal wrng wuld be cmmitted by taking the bject frm the wner. In additin, there wuld be n means f ensuring that an item btained was nt previusly lst. Rule f Finders may prtect the rights r wrngful finders (ie a persn wh finds smething while trespassing) Prperty rights t chattel fund in the sil f a prperty will usually g t the wner f that land. (B) PUBLIC LANDS AND HISTORICAL RESOURCES Legislatin may require that gds fund n public prperty be handed ver t the apprpriate authrities. In Canada, the crwn may claim treasure trve wherever it may be fund. Treasure trve: Cnsists f cached gld and silver cin, bullin, r manufactured frm, the wnership f which is unknwn. Allws the state t seize such gds and put them in museums. Usually the finder r thers with interests in the chattel will be cmpensated by the state based n the value f the treasure. Sme items that d nt fall under treasure trve may als be gverned by special finding rules and held by the state (ie items f histrical value). Claims fr rights t abriginal treasures can be especially cmplicated wh is the true wner, was the chattel abandned, is the claimant a band r an individual etc.) Area f law in dire need r refrm. (C) THE JUS TERTII DEFENCE In disputes ver prperty, the law is cncerned with ascertaining the relative rights f the parties t the cntest. This means that a better claim residing in sme third persn (jus tertii) is immaterial. (3) TRANSFER OF TITLE THROUGH DELIVERY (Gifts) Types f gifts: Inter vivs Testamentary Gifts Dnatines Mrtis Causa 3 elements t a prperly cnstituted gift: (1) An intentin t dnate - dnr must have the mental capacity t appreciate the nature f the transactin. (2) An acceptance invlves understanding f the transactin & a desire t assume title. A persn may refuse a gift althugh the law usually presumes that peple will accept a gift f smething f value. (3) A sufficient act f delivery revlves arund pssessin. Imprtant difference between cntract law and gifts n exchange f prmises in gift-giving. Delivery is seen as a